Terms of Trade

LED LIGHT WORKS PTY LTD

TRADING TERMS AND CONDITIONS

1. Definitions

In this document the following definitions apply unless the context otherwise requires.

1.1.         “Approved Credit Customer” means a customer to whom the Supplier has agreed to grant credit facilities;

1.2.         “Business Day” means any day on which banks are open for business in Brisbane;

1.3.         “Cash Customer” means a customer who makes payment for Goods at the time of the purchase of the Goods;

1.4.         “Conditions” means these trading terms and conditions and includes the Warranty;;

1.5.         “COD Customer” means a customer who makes payment for Goods on delivery of them;

1.6.         “Customer” means the person who has requested the Supplier to provide Goods to the Customer;

1.7.         “Goods ” means any goods and/or services which are requested by the Customer and agreed to be supplied by the Supplier;

1.8.         “Loss” means any loss or damage or compensation including consequential loss and loss of profits, and any special and direct incidental or consequential damages including economic loss, loss of opportunity, loss of profit or revenue, loss or damage in connection with claims against the customer by third parties, liquidated sums or liquidated damages;

1.9.         “Order” means an order for Goods placed by the Customer;

1.10.       “Supplier” means the Supplier stated in the Tax Invoice provided to the Customer in respect of a supply of Goods under these Conditions;

1.11.       “Tax Invoice” means any tax invoice in respect of the supply of Goods provided to the Customer by the Supplier;

1.12.       “Trade Practices Act” includes the Trade Practices Act 1974 and any equivalent State or Territory fair trading legislation.

1.13.       “Warranty” means the Supplier’s standard written limited warranty provided to the Customer and which must be read with these Conditions.

1. General

2.1.         The placing of any Order by the Customer will constitute an agreement upon these Conditions which will supersede any terms or conditions embodied in the Customer’s order form or otherwise sought to be imposed by the Customer, whether orally or in writing.

2.2.         Should any of the terms and conditions of these Conditions be held to be unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be enforceable.

2.3.         Where a party is required to make payment or do any other thing on a day which is not a Business Day, the party must make such payment or do such other thing on the next Business Day.

2.4.         Time is of the essence of these Conditions in relation to the obligations of the Customer.

2.5.         The Supplier may at its discretion alter these Conditions (or any part of them) from time to time.  The amended Conditions will be posted to the LED Light Works website (“the Website Version”) and the Website Version will prevail without further notice to the Customer over all other versions including those on the reverse of Tax Invoices and delivery notes, but shall only apply to contracts entered into after the date of such posting.

1. Orders

3.1.         The Supplier may decline (without giving any reason) to accept any Customer’s Order. The Supplier reserves the right to withdraw any Goods from sale from time to time despite that they may still be listed in the Supplier’s catalogue or on display on the Supplier’s website.

3.2.         The Supplier may before fulfilling any Order unilaterally delay, suspend or cancel any Order without liability by giving the Customer 14 days notice at any time.  The Supplier’s right to be paid for any Services which the Supplier has supplied up to that time remains despite that termination.

3.3.         The Customer may not cancel any Order without the Supplier’s consent and then only under terms that will indemnify the Supplier against any loss.  If despite this prohibition the Customer cancels any order the Customer must pay all costs incurred by the Supplier on cancellation of any Order.

3.4.         Goods other than defective Goods will only be accepted for return from the Customer if authorised by a director or manager of the Supplier prior to return.  All returns of non-defective Goods are subject to a handling charge determined by the Supplier from time to time.

3.5.         To the extent permitted by the applicable law, all implied conditions, warranties and rights are excluded unless expressly stated in these Conditions or otherwise agreed in writing by the Supplier and the Customer.

1. Delivery by The Supplier

4.1.         The Supplier will not be required to deliver the Goods to the Customer unless stated in the Order.

4.2.         Unless otherwise stated in the relevant Order, the Customer will be responsible for any delivery charges.

4.3.         Where in terms of the Order the Supplier is required to deliver the Goods:

4.3.1.       such Goods shall be delivered to the address stated in the Order by any mode or method of delivery or route decided by the Supplier in its discretion;

4.3.2.      the Supplier will use its best efforts to deliver the Goods within the Customer’s required delivery period but shall not be liable for any Loss directly or indirectly sustained for any failure to deliver within such period.

4.4.         The Customer must ensure that a person with authority to accept delivery is available to accept delivery and to sign a copy of the Supplier’s delivery note evidencing receipt of delivery and the Supplier shall be conclusively presumed to have delivered the Goods in accordance with these Conditions if the Supplier’s delivery note is so signed.

4.5.         If a person having apparent authority to issue the receipt is not present at the time of delivery, the Supplier may at its option deposit the Goods at the delivery place specified in the Order which shall be conclusively presumed to be due delivery under these Conditions, or may in its discretion store the Goods and if the Goods are stored by the Supplier, the Customer must pay or indemnify the Supplier for costs and expenses incurred in respect of such storage.

4.6.         If the Supplier is requested to make delivery of the Goods to the Customer and the Supplier cannot deliver the Goods to the Customer because of any act of or omission by the Customer, its agents or employees or due to any circumstances beyond the Supplier’s control, then the Supplier may charge an additional storage fee and any other costs the Supplier incurs because of the delay.

1. Price

5.1.         The price of the Goods will be as stated in the Tax Invoice and unless otherwise stated, all prices shall be exclusive of GST.

5.2.         The Supplier may, unless expressly agreed in writing by the Supplier and the Customer:

5.2.1.      deliver and supply the Goods in one or more instalments; and

5.2.2.      invoice the Customer on a pro-rata basis for the Goods then supplied.

5.3.         The Customer accepts the Tax Invoice as being a good and sufficient claim for the Goods supplied as described in that Tax Invoice.

1. Payments

6.1.         The Customer must make payment:

6.1.1.      in the case of a new or overseas Customer when ordering the Goods;

6.1.2.      in the case of a Cash Customer when purchasing the Goods;

6.1.3.      in the case of a COD Customer on receiving the delivery docket from the Supplier;

6.1.4.      in the case of an Approved Credit Customer within 30 days of the date of the Tax Invoice or, where the Supplier expressly and in writing agrees payment in instalments, on such terms for payment as may be agreed in writing between the parties.

6.2.         The Supplier may vary or withdraw any credit facility or credit limit at any time in its complete discretion and without any liability to the Approved Credit Customer or any party claiming through the Approved Credit Customer and without affecting or derogating from these Conditions or any obligation of the Customer.

6.3.         A certificate signed by an officer of the Supplier identifying any Goods not yet paid for or the amount outstanding, or the amount of interest on the amount outstanding shall be prima facie evidence of the matters stated in that certificate unless proved to the contrary.

6.4.         An Approved Credit Customer must make all payments due without deduction or set off and if the Approved Credit Customer has a number of invoices outstanding and disputes the amount charged in respect of one or more of the invoices, the Approved Credit Customer may not refuse to pay any charges due in respect of any undisputed invoice but must pay the undisputed invoices by due date.

1. Interest

The Customer must pay interest on any overdue amounts with effect from the due date of payment until payment in full at the Law Society of Queensland Inc Standard Contract Default Interest Rate from time to time plus 2 percentage points.

 

1. Charge

8.1.         The Customer hereby charges in favour of the Supplier by way of a fixed and floating charge:

8.1.1.      all real property in which the Customer may now or in the future have any title or interest in as security for any monies owing to the Supplier and the Customer hereby consents to the Supplier lodging a caveat noting the Supplier’s interest in that real property;

8.1.2.      all the Customer’s personal property, including without limitation all stock, motor vehicles, plant and equipment, all debtors, goodwill, documents of title and current and later acquired intellectual property;

until payment of all monies owed to the Supplier by the Customer. The Customer irrevocably appoints the Supplier’s manager and/or director (if more than one, severally) from time to time as the Customer’s attorney to do all things necessary to create and register such charge.

8.2.         The Customer must, upon request by the Supplier, sign all documents and do all things that the Supplier may reasonably require to be signed or done by the Customer to secure to the Supplier any monies owing to the Supplier by the Customer from time to time.

1. Retention of ownership

9.1.         Despite the passing of risk as provided in clause 11, property in the Goods supplied by the Supplier to the Customer shall remain with the Supplier until payment in full for the Goods.  The Customer holds all unpaid Goods as fiduciary for the Supplier until payment in full of the purchase price.  The Customer may resell the Goods but only as a fiduciary agent of the Supplier.  Any right to bind the Supplier to any liability to any third party by contract or otherwise is expressly negatived.  Any such resale is to be at arm’s length and on market terms and pending resale or utilisation in any construction process the Goods are to be kept separate from its own Goods, properly stored, protected and insured.  The Customer must receive all proceeds, whether tangible or intangible, direct or indirect of any dealing with such Goods in trust for the Supplier and must keep such proceeds in a separate account until the liability to the Supplier has been discharged.  The Supplier may appropriate payments to such Goods and account as it thinks fit despite any appropriation by the Customer to the contrary.  If the Customer uses the products in some construction process of its own or that of some third party, then the Customer must hold such part of the proceeds as such construction processes relates to the Goods in trust for the Supplier.  Such part shall be deemed to equal in dollar terms the amount owing by the Customer to the Supplier at the time of the receipt of such proceeds.

9.2.         The Customer’s right to posses any Goods not paid for ceases when:

9.2.1.      an invoice remains unpaid for more than 14 days after due date for payment; and

9.2.2.      the Customer, being an individual, commits an act of bankruptcy or makes a proposal to his or her creditors for a composition;

9.2.3.      the Customer, being a company is placed in receivership or liquidation or enters into any composition with its creditors or enters into any scheme of arrangement.

9.3.         The Supplier reserves the right to re-take possession of, in whole or in part, and dispose of the Goods as the Supplier sees fit at any time until full payment has been made of all monies owing to the Supplier under any Order.  The Customer irrevocably grants permission to the Supplier, at the risk of the Customer, to enter upon any premises where the Goods are located in the name of, and at the cost and expense of the Customer, in order to recover possession of the Goods and to use such force as necessary.  If the Supplier enters any such premises to recover Goods the Customer indemnifies the Supplier or its agents or employees against any liability as a result of the entry to the Customer’s premises.

 

1. Default

10.1.       If the Customer does not pay in full its liability by due date, or otherwise if either party breaches any essential term of these Conditions and fails to remedy such breach within 14 days of written notice to do so, the non defaulting party may, without prejudice to any other remedies which it may have, terminate the contract between the Supplier and the Customer on giving written notice to the defaulting party.

10.2.       The Supplier may:

10.2.1.   cancel any credit facility made available to the Customer; and/or

10.2.2.   call up any monies owed by the Customer on any Tax Invoice whether or not the credit period has expired; and/or

10.2.3.   retain all monies paid on account; and/or

10.2.4.   recover from the Customer all loss of profits arising from any breach; and/or

10.2.5.   take immediate possession of any Goods not paid for and resell them.

10.3.       The Customer must indemnify the Supplier against all costs, including full indemnity legal costs, commercial agent fees, commissions, freight, storage charges, surcharges, fees, insurance, accounting costs, loss of profit in all interests incurred by the Supplier as a result of the Customer’s default.

1. Risk

11.1.       Risk of loss or damage to any Goods ordered by the Customer passes at the time the Goods are allocated by the Supplier to meet the Order.  Delivery of the Goods is at the Customer’s sole risk.

11.2.       The Customer must insure the Goods which are at the Customer’s risk, fully and properly against loss or damage for their full insurable value and with the Supplier’s interest noted in such policy. The Supplier may at any time request proof of such insurance from the Customer.

11.3.       If any of the Goods are damaged prior to tender of delivery, the Customer must direct any insurer of such Goods to make payment of all insurance monies payable in respect of any insurance claim made in respect of the damaged or destroyed Goods to the Supplier.  Receipt of such payment is to be applied first against the price of the Goods that may have been destroyed or damaged and then against any outstanding balance owed to the Supplier and the balance thereof, if any, shall be payable to the Customer.

1. Limitation of Liability

12.1.       To the extent permitted by the applicable law, the Supplier shall not be responsible to the Customer for:

12.1.1.   any Loss in connection with the supply of the Goods, whether arising from the negligent act or omission of the Supplier, its employees or agents, whether or not the Supplier has been advised, or is aware of the possibility of such Loss, and whether arising in contract, tort or otherwise, except to the extent of warranties, undertakings and promises expressly made by the Supplier in writing and forming part of the contract;

12.1.2.   any Loss arising out of any fault or defect in the Goods;

12.1.3.   any representations made by or on the Supplier’s behalf which are not in writing;

12.1.4.   any statement or recommendation made, or advice, supervision or assistance given by the Supplier, its employees and agents whether oral or written;

12.1.5.   any delay or failure in delivery of Goods, or default, or failure in performance of the Goods because of circumstances beyond the Supplier’s control including, without limitation, acts of God or of another person, natural disaster or disasters caused by man or animal or machinery or circumstances partly of one kind and partly of another;

12.1.6.   any Loss suffered or incurred by the Customer arising out of a breach by the Supplier of an Order or a negligent act or omission of the Supplier or a breach of a statutory duty or obligation by the Supplier;

12.1.7.   any Loss suffered in the course of delivering or installing the Goods.

1. Notices

13.1.       Any notice to be given under these Conditions must be in writing and may be given:

13.1.1.   by delivering it to the address of the recipient on a Business Day during normal business hours; or

13.1.2.   by sending it to the address of the recipient by pre-paid post; or

13.1.3.   by sending it by facsimile transmission to the facsimile number of the recipient.

13.2.       Notice shall be deemed to be given and received:

13.2.1.   if delivered, on the day of delivery;

13.2.2.   if posted, three clear Business Days after the day of posting;

13.2.3.   if sent by facsimile, on the date of successful transmission provided that if the facsimile is sent after 5.00 pm notice shall be deemed to be given on the next Business Day.

13.3.       The address of the Supplier shall be that stated in Tax Invoices provided to the Customer and the address of the Customer shall in the absence of notice to the contrary be as set out in the Application for Credit, or in the case of Cash Customers or COD Customers as set out in the relevant Tax Invoice.

1. Goods and Services Tax

14.1.       In these Conditions, in addition to other defined terms, all amounts are exclusive of GST and:

14.1.1.   GST has the same definition as that term has in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

14.1.2.   ‘GST Adjustment Rate’ means, in respect of each GST Review Date, the difference in the rate of GST in relation to the rate:

14.1.2.1.    on the GST Date; or

14.1.2.2.    if there has been a previous GST Review Date, on the immediately preceding GST Review Date;

14.1.3.   ‘GST Date’ means the date on which the Grantors liability for GST on any supply under these Conditions first arises;

14.1.4.   ‘GST Rate’ means the rate of GST on the GST Date; and

14.1.5.   ‘GST Review Date’ means any date that the rate of GST is changed so that the new rate of GST becomes the effective rate at which supplies made by the Supplier under these Conditions are taxed.

14.2.       Despite any other provisions of these Conditions, if the GST Rate increases or decreases, as the case may be, on and from:

14.2.1.   the GST Date by the GST Rate; and

14.2.2.   a GST Review Date by the GST Adjustment Rate.

the Customer must pay, or the Supplier must credit, any decrease or increase on the date the next payment under these Conditions is payable to the Supplier (on a pro rata daily basis).

14.3.       The Supplier must give the Customer a tax invoice for the cost of Goods supplied stating the amount of GST paid or payable by the Customer on that payment.

14.4.        The Supplier warrants that the amounts referred to in any tax invoices the Supplier gives to the Customer are correct and will ensure that the tax invoices detail the amount of GST paid or payable in respect of the supply to which the invoice relates.

1. Entire Agreement

15.1.       These Conditions embody all of the terms and conditions binding on the parties and there have been no representations, agreements or proposals, save for those specifically recorded in them.

15.2.       These Conditions may not be varied except in writing signed by the parties.

1. Waiver

Any waiver or leniency in regard to the performance of these Conditions shall operate only if agreed in writing and shall apply only to the specified instance, and shall not affect the existence and continued applicability of the terms of these Conditions thereafter.

1. Severability

If any provision of these Conditions is held by a Court to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation, the validity and enforceability of the remaining provisions shall not be affected.

1. Signatory

The Customer and any person signing an Order on behalf of a Customer agree that the signatory is jointly and severally with the Customer liable for payment of the Supplier’s account.

1. Subcontracting

The Supplier may in its discretion sub-contract all or part of the supply of the Goods on such terms and conditions as it sees fit.

1. Assignment

The Customer may not assign or purport to novate an Order whether voluntarily or otherwise without the Supplier’s prior written consent.  No assignment however occurring, and whether consented to by the Supplier or not will relieve the Customer of its obligations to the Supplier.

1. Jurisdiction

The contract constituted by an Order will be governed by the laws of the State of Queensland and the parties submit to the exclusive jurisdiction of the courts of Queensland and the courts of appeal from such courts.